Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of C.Ex., Hyderabad vs A.P.S.E.B. on 27 June, 2001
Equivalent citations: 2001(77)ECC265
ORDER
Shri S.L. Peeran
1. This Revenue appeal arises from OIA No.16/92 (G) (CE) dated 29.8.92 by which the Ld.Commissioner has held the following items to be not excisable as assessees are only carrying out the fabrication work in their workshop :-
1. M.S.Stay sets
2. L.T.Three phase cross arms
3. L.T.Single Phase Cross arms
5. M.S.Back clamps
6. M.S.Stay clamps
2. Ld.SDR submits that the matter was referred to a Larger Bench of Five Members of the Apex Court in the case of CCE JAIPUR Vs MAN STRUCTURALS LTD. reported in 2001 (130) ELT 401. The Apex Court remanded the case for de novo consideration with a clear direction that each of the item is required to be scrutinized and found as to whether a new identical goods arises as a result of manufacture or processes and whether they are marketable. The test after so applying, the matter has to be re-adjudicated and findings recorded as items are finding a place in tariff entry.
3. LD.Counsel raised a preliminary objection stating that authorisation issued by the Commissioner to file the appeal is not proper and legal. He has himself given the authorisation to the Asst.Commissioner to file the appeal which is not in terms of law. He contends further that Commissioner (Appeals) has given a clear cut finding that items are not marketable and they are not goods and he has applied the judgement of the Tribunal pertaining to trusses, columns, purlins etc. made by cutting, drilling, welding of channels, angles, joints as decided in the case of ARUNA INDUSTRIES -1986 (25) ELT 580. He submits that Commissioner also looked into the judgement of DODSAL PVT.LTD Vs CCE Baroda - 1987 (28) ELT 352 which dealt with the aspect pertaining to straightening, cutting, bending, punching etc. of steel ingots, plates, channels and bars for erection of transmission tower at site and the Tribunal has held that the same did not amount to manufacture.
4. He submits that the Apex Court judgement dealt with the aspect pertaining to structurals and the case is distinguishable to the present case. He submits that the items which have clearly held to be not goods as it is not sold in the market.
5. On a careful consideration of the submissions, and on perusal of the Apex Court judgement, we notice that Apex Court had taken large batch of appeals which dealt with not only the aspect of structurals but also on various other items and a direction was given to the Tribunal to re-examine the issue of marketability in the light of process of manufacture to render a clear cut finding as to whether the processes bring into existence identifiable goods and whether they can be classified under respective tariff entry as goods find a place in the tariff entry. In the present case, the original authority had given a clear cut finding that the item was classifiable under chapter sub-heading 7308.90 and appellants themselves were captively using it and captive use itself disclose the marketability. In this connection, the original authority had relied on the Apex Court judgement rendered in the case of BHOR INDUSTRIES - 1985 (40) ELT 280 (SC) which judgement was also quoted by the assessee. We notice that the Apex Court dealt with the batch of large number of appeals which dealt not only with structurals but also on other aspects of items which was considered as not goods on the premise that they are not marketable. Now that the Apex Court has given the direction that marketability is the test and also that there has to be a finding on the emergency of identifiable goods in terms of tariff entry. This aspect cannot be gone into by the Tribunal at this stage as it requires scrutiny of documentary evidence and also study of manufacturing process. Therefore, we are of the considered opinion that the matter has to go back to the original authority for de novo consideration. The burden of proving that item are goods and excisable goods as classifiable under Sub Heading 7308.90 is initially on the Revenue and Revenue has to first discharge its burden that they are gods and that they are marketable and identifiable for classification purpose under the sub-heading claimed by them. Assessee also has got a right to present rebuttal evidence to show that the process carried out by them does not result into an identifiable goods and they are not marketable.
6. In that view of the matter, the impugned order is set aside and matter remanded to the original authority for de novo consideration in the light of observations made above. Assessees shall be given an opportunity in terms of principles of natural justice to produce additional evidence and also to make additional submissions in the matter. the original authority shall decide the matter with an open mind.
(Pronounced & Dictated in open court)